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Home / Published archives / Journal of Criminal Law and Criminology – Number 1

Journal of Criminal Law and Criminology – Number 1

Journal of

Criminal Law and Criminology

 

Number 1

Vol. I ● No. 1

Spring – Summer 2013

Managing Editor: Vahid Eshtiagh

 

 

CONTENTS

 

Articles

 

 

The Evolutions of the New Islamic Penal Code in the Matter of Application of Criminal Laws in space
Ali Khaleghi

 

Special Canons of Interpretation in Criminal Law
Ali Shojaei

 

Fair Trial Criteria of the Accused Arrest
Mohammad Farajiha, Mohammad Bagher Moghadasi

 

Freedom Oriented Criticism of the Blasphemous Speech
Mohammad Hadi Zakerhossein

 

Obstacles before National Courts in Prosecuting International Criminals Based on Universal Jurisdiction
Masoumehsadat Mirmohammadi

 

Civil and Criminal Liability of the Manufacturer of Non Standard Products
Sadegh Dashti, Pejman Mohammadi, Hossein Aghaei Jannatmakan

 

Visual Media and Violence
Tahereh Abedi Tehrani, Fatemeh Afshari

 

Study of the Area of Application of the Presumption of Innocence by the European Court of Human Rights
Behnam Medi

 

Articles

 

The Evolutions of the New Islamic Penal Code in the Matter of Application of Criminal Laws in space

Ali Khaleghi (Ph. D.)
Abstract:
The new Islamic Penal Code of 2013 has approached to the topic of “Application of criminal laws in space” in a chapter under the same title including some changes in comparison to previous Islamic Penal Code of 1991, which can be regarded as the evolutions of the new Code. However, some of these changes and evolutions are really a return to the provisions of the Penal Code of 1972 – a return which makes it difficult to consider the evolutions as an innovation. The most significant return is the limited recognition of foreign criminal judgments which can be considered as a milestone in international judicial cooperations. Providing criminal jurisdiction based on the nationality of the victim (passive personality principle) and establishing the basis for authentication of international legal customary rules as a source of universal jurisdiction for Iranian courts are two other considerable innovations of the new Code.
Keyword: 
domain of application of Criminal laws, principle of personality, principle of reality, principle of universality, validity of foreign criminal judgments, non bis in idem, Islamic Penal Code.

Special Canons of Interpretation in Criminal Law

Ali Shojaei (Ph. D.)
Abstract:
Canons of restrictive interpretation and interpretation in favor of the accused are, among all canons of interpretation, special in criminal law. The canon of restrictive interpretation, which protects the principle of legality in criminal law, could be defined as the interpretation based on or in line with the legality of crimes. As a result, this canon serves as protecting the rights of the society, victims and the accused and, therefore, takes precedence over the canon of interpretation in favor of the accused, which only is on the accused. The latter canon belongs to the final phase of interpreting a criminal law and protects rights of the accused in the framework of principle of permissibility and presumption of innocence. The canon applies when a meaning of a criminal law could not be preferred on the basis of relevant theories of interpretation and other canons on interpretation.
Keywords:
canon of interpretation, theory of interpretation, principle of legality, restrictive interpretation, interpretation in favor of the accused.

Fair Trial Criteria of the Accused Arrest

Mohammad Farajiha (Ph. D.)
Mohammad Bagher Moghadasi (Ph. D.)
Abstract:
Police officers have very important role in crime detection, identification, detention and criminal prosecution of the accused. Speeding up in gathering evidence and getting results are the most important priorities of the police in the most criminal justice systems. Police emphasis on increasing efficiency and effectiveness of its units leads to disregard the accused rights. In international documents and domestic codes many criteria such as arresting the accused according to reliable evidence, informing charges promptly, using the less force in arrest and prohibition of detention of the accused in illegal lockup has been foreseen in order to protect the accused rights. This article attempts to analyze fair trial criteria of arrest in Iran’s criminal codes and comparative law.
Keywords:
the accused arrest, fair trial criteria, criminal procedure, abuse of power, assumption of innocence.

Freedom Oriented Criticism of the Blasphemous Speech

Mohammad Hadi Zakerhossein
Abstract:
The publication of the Danish cartoons of the Prophet Mohammad – peace is upon him- triggered widespread debates across the world over the freedom of expression and its legitimate scope.
Advocates of the blasphemous speech in Western context invoke the freedom of speech, contending that the right to free speech extends beyond the right to insult, including offend religious beliefs. In contrast to this vision, Human Rights Law prohibits insulting remarks and blasphemous speech again. The Human Rights is based on a hierarchy regime and within this hierarchical system the freedom of religion occupies the higher level in comparison with the freedom of expression. Therefore, no expression can intervene the freedom of having religious beliefs. From this viewpoint, it is justified to impose limitation on speeches that insult the believers of a religion.
Keywords:
freedom, Freedom of Expression, Freedom of Religion, blasphemy.

Obstacles before National Courts in Prosecuting International Criminals Based on Universal Jurisdiction

Masoumehsadat Mirmohammadi
Abstract:
Regardless of the fact that prosecution of international crimes in national courts has politically, sociologically and practically precedence on international ones, national courts’ decisions can strength the process of fight against impunity and enrich sources of international criminal law. States may exert various territorial and transterritorial criterions in prosecuting international criminals. One of the transterritorial criterions in exerting criminal jurisdiction is “Universal Jurisdiction” application of which contrary to other criterions in this field, needs not a nexus between the proceeding state and the crime or the criminal. This criterion in its absolute meaning, however, was so extensive that it could not find its proper and deserved position among other criterions. Put differently, it faced failure. Although it could revive the hope of prosecution of international criminal in victims’ hearts, after taking some steps it confronted various legal, political and technical obstacles which considerably slowed down or even stopped eye-catching move of national courts in fight against impunity.
Keywords: 
national courts, universal jurisdiction, prosecution of international criminals, sovereignty of States, prosecutor’s discretion.

Civil and Criminal Liability of the Manufacturer of Non Standard Products

Sadegh Dashti
Pejman Mohammadi (Ph. D.)
Hossein Aghaei Jannatmakan (Ph. D.)
Abstract:
Many buyers to make use of goods to reason development goods and presentations goods to market. In many industrial societies that speed production goods are high. Dangers use of goods will high too. A few dangers are depend on natures goods and other are depend on non- standard goods and cars be lose to user. To production un-quality goods and lose to user, we question ourselves: what we do about it? We follow it that clear defects of subjects and search to find way with specify limits responsibilities civil and penal producer goods and study it base on responsibilities, elements and effects and guarantee execution. What most people of society expect of legal laws, ministry of justice and control department that decisive and effective encounters in this field, that to prevent of lose on future and to compel sate of people too.
Keywords:
civil liability, criminal liability, non standard products, consumers, manufacturers.

Visual Media and Violence

Tahereh Abedi Tehrani (Ph. D.) & Fatemeh Afshari
Abstract:
The media is one of the most important effective factors in society life. The TV, radio, internet, satellite and … are important because nowadays, the media has a basic role in causing the crimes and departures and also it has positive effect more than before and have an important role in reducing social problems and crimes. One of the cases that are blat for crimes and media special visual media effects on its creation is violence. The element of violence is blemish to other persons that knows as a crime in many cases.
The visual media, makes the root for learning violence from media by making the audience accustomed, desensitivity, latituding and … and after that, this violence, exactly is, imitated and performed in the society. But in making real violence interfere other reasons too, like media’s root’s reasons, personal reasons, and environmental reasons. One of the most important is age. Media has more effects on younger people, because they are realist and their recognition ability is weak so they can not make a good relationship between scenes of programs and the final result.
Despite these effects, it’s necessary for the government, the program producers, the schools and parent to try to control media by participating status program, supervising on its program, giving more attention to the program’s contents and giving programs which are suitable for the audience ages.
Keywords:
media, violence, prevention, learning, lmitation.

Study of the Area of Application of the Presumption of Innocence by the European Court of Human Rights

Behnam Medi
Abstract:
The Presumption of Innocence is enshrined in different international human rights documents, including the European Convention on Human Rights. Although the Presumption involves a wide range of aspects and influences, its applicability or its area of application is restricted to some conditions. Most of these documents (like the European Convention on Human Rights) state that the Presumption lies exclusively within the area of “charges of criminal offences”. Contrary to some other conceptions, the Presumption does not orbit “doubt as to obligation” or even “doubt” itself. In truth, it exclusively rotates around charges of criminal offences. Accordingly, the European Court of Human Rights, due to Article 6 (2), in order to determine the area of application of the Presumption faces two concepts: first is the concept of “charge” and the other is concept of “criminal offence”. The main concern of the present research is to scrutinize the Court’s approach to these concepts. In principle the Court views “charge” as a formal notification which is submitted to an authorized public official to an individual. But the Court regards as “charge” any measure by state which has that effect. On the other hand, the Court has created three criteria in order to find out what a criminal offence is. First the Court has regard to the classification of the offence in domestic law. Then, it assesses the offence according to the nature of the offence and the aim of its punishment. As the third criterion, the Court considers the nature of punishment and its severity. In fact, the Court, in its procedure, has tried to interpret these two concepts in a manner which offer more protection to individuals.
Keywords: 
the Presumption of Innocence, the European Court of Human Rights, applicability, charge, criminal offence.

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